Exhibit 10.1
__________________________________________________________
STOCK PURCHASE AGREEMENT
Among
XXXXX XXXXXX CORPORATION and
W. XXXXXXX XXXXXXXX, as Sellers
and
THE MATCO ELECTRONICS GROUP, INC. and
U.S. ASSEMBLIES SAN DIEGO, INC., as Buyers
Dated as of November 24, 1997
__________________________________________________________
_
TABLE OF CONTENTS
Page
ARTICLE I SALE AND PURCHASE OF SHARE 1
SECTION 1.01 SALE OF THE SHARES. 1
SECTION 1.02 PURCHASE PRICE AND PAYMENT FOR SHARES. 1
SECTION 1.03 DELIVERY OF THE SHARES. 1
ARTICLE II
CLOSING 2
SECTION 2.01 CLOSING. 2
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS 2
SECTION 3.01 CORPORATE ORGANIZATION AND AUTHORITY OF SCC. 2
SECTION 3.02 CORPORATE ORGANIZATION AND AUTHORITY OF SCM. 2
SECTION 3.03 SUBSIDIARIES AND EQUITY INVESTMENTS. 3
SECTION 3.04 OWNERSHIP OF SHARES. 3
SECTION 3.05 CAPITALIZATION. 3
SECTION 3.06 NO VIOLATION; CONSENTS AND APPROVALS. 3
SECTION 3.07 FINANCIAL STATEMENTS. 4
SECTION 3.08 TITLE TO PROPERTIES; ABSENCE OF LIENS. 4
SECTION 3.09 LITIGATION. 4
SECTION 3.10 COMPLIANCE WITH LAW. 4
SECTION 3.11 CONTRACTS. 4
SECTION 3.12 TAX MATTERS 5
SECTION 3.13 CERTAIN EVENTS. 6
SECTION 3.14 ENVIRONMENTAL MATTERS. 6
SECTION 3.15 MACHINERY AND EQUIPMENT. 7
SECTION 3.16 EMPLOYEES; LABOR RELATIONS. 7
SECTION 3.17 DIRECTORS AND OFFICERS. 7
SECTION 3.18 SUPPLIERS. 8
SECTION 3.19 CERTAIN TRANSACTIONS. 8
SECTION 3.20 DISCLAIMER OF OTHER REPRESENTATIONS AND
WARRANTIES; BEST KNOWLEDGE; DISCLOSURE. 8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYERS 9
SECTION 4.01 ORGANIZATION. 9
SECTION 4.02 CORPORATE AUTHORITY. 9
SECTION 4.03 NO VIOLATION; CONSENTS AND APPROVALS. 9
SECTION 4.04 INVESTMENT INTENT. 10
SECTION 4.05 LITIGATION. 10
ARTICLE V
CERTAIN COVENANTS AND AGREEMENTS OF SELLERS AND BUYERS 10
SECTION 5.01 TAX COVENANTS. 10
SECTION 5.02 EXPENSES AND FINDERS' FEES. 13
SECTION 5.03 ACCESS TO INFORMATION AND CONFIDENTIALITY 13
SECTION 5.04 PRESS RELEASES. 13
SECTION 5.05 BOOKS AND RECORDS. 13
SECTION 5.06 USE OF NAMES. 14
SECTION 5.07 OFFICERS AND DIRECTORS. 14
ARTICLE VI
CONDITIONS PRECEDENT OF BUYERS 15
SECTION 6.01 OPINION OF COUNSEL. 15
SECTION 6.02 CLOSING DOCUMENTATION. 15
SECTION 6.03 APPROVAL OF LEGAL MATTERS. 15
SECTION 6.04 OTHER AGREEMENTS. 15
SECTION 6.0 CONSENTS. 16
ARTICLE VII
CONDITIONS PRECEDENT OF SELLERS 16
SECTION 7.01 OPINION OF COUNSEL. 16
SECTION 7.02 CLOSING DOCUMENTATION. 16
SECTION 7.03 APPROVAL OF LEGAL MATTERS. 16
SECTION 7.04 OTHER AGREEMENTS. 16
SECTION 7.05 CONSENTS. 17
ARTICLE VIII
INDEMNIFICATION 17
SECTION 8.01 INDEMNIFICATION BY SCC. 17
SECTION 8.02 INDEMNIFICATION BY BUYERS. 18
SECTION 8.03 REMEDIES. 19
SECTION 8.04 PERIOD OF INDEMNITY. 19
SECTION 8.05 CERTAIN LIMITATIONS. 19
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES 20
SECTION 9.01 REPRESENTATIONS AND WARRANTIES. 20
ARTICLE X
MISCELLANEOUS 20
SECTION 10.01 COOPERATION. 20
SECTION 10.02 WAIVER. 20
SECTION 10.03 NOTICES. 21
SECTION 10.04 GOVERNING LAW AND CONSENT TO JURISDICTION 22
SECTION 10.05 COUNTERPARTS. 22
SECTION 10.06 HEADINGS. 22
SECTION 10.07 ENTIRE AGREEMENT. 22
SECTION 10.08 AMENDMENT AND MODIFICATION. 22
SECTION 10.09 BINDING EFFECT; BENEFITS. 22
SECTION 10.10 ASSIGNABILITY. 23
LIST OF SCHEDULES AND EXHIBITS
Schedule 3.06 No Violations, Consents
Schedule 3.08 Title to Properties
Schedule 3.09 Litigation
Schedule 3.11 Contracts
Schedule 3.12 Tax Matters
Schedule 3.13 Certain Events
Schedule 3.14(c) Environmental Actions, Claims,
Notifications, Etc.
Schedule 3.14(d) Releases of Hazardous Substances,
Governmental Liens Resulting from
Releases or Clean-ups
Schedule 3.16 Employees; Labor Relations
Schedule 3.17 Directors and Officers
Schedule 3.18 Suppliers
Schedule 3.19 Certain Transactions
Schedule 3.20 Persons with Knowledge
Schedule 4.03 No Violations, Consents
Schedule 4.05 Litigation
Schedule 5.02 Finders' Fees
Exhibit A Opinion of Seller's Counsel
Exhibit B Opinion of Buyer's Counsel
STOCK PURCHASE AGREEMENT dated as of November 24, 1997
(together with the Schedules and Exhibits attached hereto,
the "Agreement") among XXXXX XXXXXX CORPORATION, a Delaware
corporation ("SCC"), W. XXXXXXX XXXXXXXX ("Xxxxxxxx," and
together with SCC, "Sellers"), THE MATCO ELECTRONICS GROUP,
INC., a Delaware corporation ("MEG") and U.S. ASSEMBLIES SAN
DIEGO, INC., a Delaware corporation ("Assemblies," and
together with MEG, "Buyers").
W I T N E S S E T H:
WHEREAS, SCC and Xxxxxxxx are the beneficial and record
holders of all of the shares of capital stock (the "Shares")
of Xxxxx Corona De Mexico, S.A. De C.V. ("SCM"); and
WHEREAS, Sellers wish to sell and Buyers wish to purchase
the Shares and the parties wish to consummate the other
transactions herein provided, all upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in reliance upon the representations and
warranties made herein and in consideration of the mutual
agreements herein contained, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
Section 1.01 Sale of the Shares.
At the Closing provided for in Section 2.01, Sellers
shall sell the Shares to Buyers and Buyers shall purchase the
Shares for the purchase price provided in Section 1.02.
Section 1.02 Purchase Price and Payment for Shares.
(a)
Purchase Price. As full consideration to be paid
by Buyers, the aggregate purchase price for the Shares is
$2,000,000, (the "Purchase Price").
(b)
Payment of Purchase Price. (i) At the Closing,
Buyers shall deliver to the escrow agent an amount equal to
the Purchase Price in immediately available funds by wire
transfer to an account designated by the escrow agent.
Section 1.03 Delivery of the Shares.
At the Closing, Sellers will deliver to the escrow agent
stock certificates, in form suitable for transfer, registered
in the name of Sellers, evidencing the Shares, with an
executed blank stock transfer power attached, and with all
necessary stock transfer tax stamps attached thereto.
Sellers further agree that, from and after the Closing,
they will execute and deliver to Buyers such additional
instruments and documents and take such further action as
Buyers may reasonably require in order to more fully vest,
record and/or perfect Buyers' title to, or interest in, the
Shares.
ARTICLE II
CLOSING
Section 2.01 Closing.
The closing of the transactions provided for herein (the
"Closing") will take place at the offices of Winthrop,
Stimson, Xxxxxx & Xxxxxxx, Financial Centre, 000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx at 10:00 A.M. (local time) on
November 24, 1997 (the "Closing Date") or at such other
place, time and date as may be agreed upon by Buyers and
Sellers.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLERS
Subject to the Schedules attached hereto and referred to
below, SCC (and with regard to Sections 3.01, 3.04 and 3.06,
Xxxxxxxx as to himself only and not as to SCC) represents and
warrants, to Buyers that:
Section 3.01 Corporate Organization and Authority of
SCC.
SCC is a corporation duly organized and validly existing
under the laws of the State of Delaware. SCC has full
corporate power and authority to enter into this Agreement
and all other documents required to be entered into hereunder
(this Agreement, collectively with such other documents, the
"Documents") and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance
by SCC of the Documents have been duly authorized by all
requisite corporate action. The Documents have been duly
executed and delivered by SCC and Xxxxxxxx, and (assuming due
execution and delivery by Buyers) the Documents constitute
the valid and binding obligations of SCC and Xxxxxxxx,
enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally or by general equitable principles.
Section 3.02 Corporate Organization and Authority of
SCM.
SCM is a corporation duly organized, validly existing
and in good standing under the laws of the United Mexican
States and has all corporate power and authority to carry on
its business as now being conducted and to own its properties
and is duly licensed or qualified and in good standing as a
foreign corporation in each jurisdiction in which it is
required to be so licensed or so qualified. SCM has
heretofore delivered or made available to Buyers complete and
correct copies of the certificate of incorporation, by-laws
or similar corporate organizational documents of SCM as
currently in effect.
Section 3.03 Subsidiaries and Equity Investments.
SCM has no Subsidiaries (as defined below) and is not a
general partner in any partnership or coventurer in any joint
venture or other business enterprise. The term "Subsidiary"
means any corporation of which SCM, directly or indirectly,
owns or controls capital stock representing more than fifty
percent of the general voting power under ordinary
circumstances of such corporation.
Section 3.04 Ownership of Shares.
SCC and Xxxxxxxx are the lawful record and beneficial
owners of the Shares. SCC and Xxxxxxxx own the Shares free
and clear of all Encumbrances (as defined below) except for
restrictions on transfer under the laws of the United States
of America, United Mexican States and any applicable state
securities laws. SCC and
Xxxxxxxx will deliver beneficial and legal, valid and
indefeasible title to such Shares as contemplated under
Section 1.03 hereof to Buyers, free and clear of all
Encumbrances except for restrictions on transfer under
applicable securities laws.
Section 3.05 Capitalization.
The authorized capital of SCM consists of 308,000 shares
of common stock, par value 50 pesos per share (the "Common
Stock"), of which 308,000 shares are issued and outstanding
and no shares are reflected on the books and records of SCM
as treasury shares. All such issued and outstanding shares of
Common Stock are duly authorized and validly issued, fully
paid, nonassessable and were not issued in violation of any
preemptive rights. There are no outstanding options,
warrants or other rights of any kind to acquire any
additional shares of capital stock of SCM or securities
convertible into or exchangeable for, or which otherwise
confer on the holder thereof any right to acquire, any such
additional shares, nor is SCM committed to issue any such
option, warrant, right or security.
Section 3.06 No Violation; Consents and Approvals.
Except as disclosed in Schedule 3.06, neither SCC nor
Xxxxxxxx is subject to or bound by any provision of:
(a) any law, statute, rule, regulation or judicial
or administrative decision,
(b) any articles or certificate of incorporation or
bylaws or other similar organization documents,
(c) any mortgage, deed of trust, lease, note,
shareholders' agreement, bond, indenture, other instrument or
agreement, license, permit, trust, custodianship, other
restriction, or
(d) any judgment, order, writ, injunction or decree
of any court, governmental body, administrative agency or
arbitrator,
that would prevent or be violated by or that would result in
the creation of any material Encumbrance (as defined below) as
a result of, or, with respect to material agreements, under
which there would be a default or right of termination, as a
result, of the execution, delivery and performance by such
Seller of the Documents and the consummation of the
transactions contemplated thereby. Except as disclosed in
Schedule 3.06, no consent, approval or authorization of or
declaration or filing with any individual, corporation,
partnership, trust or unincorporated organization or any
government or any agency or political subdivision thereof (a
"Person") is required for the valid execution, delivery and
performance by such Seller of the Documents and the
consummation of the transactions contemplated thereby.
Section 3.07 Financial Statements.
SCM has delivered to Buyers the unaudited balance sheet of
SCM as of October 31, 1997 and the related unaudited income
statement for the fiscal year then ended (including the notes
thereto and any other information included therein).
Section 3.08 Title to Properties; Absence of Liens.
SCM has good and valid title to, or subsisting leasehold
interests in, all of its properties and assets, real or
personal, free and clear of any pledges, liens, charges,
encumbrances, easements, defects, security interests, claims,
options and restrictions of every kind ("Encumbrances").
Section 3.09 Litigation.
Except as disclosed in Schedule 3.09, there is no action,
suit, proceeding or investigation as of the date hereof
pending or, to the best knowledge of SCC, threatened against
SCM at law, in equity or otherwise, in, before, or by any
court of competent jurisdiction.
Section 3.10 Compliance with Law.
To the best knowledge of SCC the business of SCM is being
conducted in compliance with all laws, ordinances and
regulations of any governmental entity applicable to SCM. To
the best knowledge of SCC, all governmental approvals, permits
and licenses required by SCM in connection with the conduct of
its business have been obtained and are in full force and
effect and are being complied with in all material respects.
Section 3.11 Contracts.
Except as set forth in Schedule 3.11, and except for
contracts made in the ordinary and usual course of business or
in connection with this Agreement and the transactions
contemplated hereby, SCM is not as of the date hereof a party
to, or bound by, any contract of any kind to be performed
after the Closing Date pursuant to which SCM is obligated to
expend more than $5,000 in any twelve-month period and which
is not subject to cancellation by SCM without penalty or
increased cost.
Section 3.12 Tax Matters
(a) For purposes of this Agreement,
(i) "Tax" or "Taxes" shall mean any federal,
state, local, foreign or other taxes (including, without
limitation, income (net or gross), gross receipts,
profits, alternative or add-on minimum, franchise,
license, capital, capital stock, intangible, services,
premium, mining, transfer, sales, use, ad valorem,
payroll, wage, severance, employment, occupation,
property (real or personal), windfall profits, import,
excise, custom, stamp, withholding or estimated taxes),
fees, duties, assessments, withholdings or governmental
charges of any kind whatsoever (including interest,
penalties, additions to tax or additional amounts with
respect to such items) and shall include Transfer
Pricing;
(ii) "Pre-Closing Periods" shall mean all Tax
periods ending on or before the Closing Date and, with
respect to any Tax period that includes but does not end
on the Closing Date, the portion of such period that
ends on and includes the Closing Date;
(iii) "Returns" shall mean all returns,
declarations, reports, estimates, information returns
and statements of any nature regarding Taxes required to
be filed by any person or entity and relating to SCM;
(iv) "Code" shall mean the Internal Revenue Code
of 1986, as amended, or, if appropriate, any predecessor
statute; and
(v) the term "Tax deficiency" shall include a
reduction in any net operating losses.
(b) Except as disclosed in Schedule 3.12:
(i) all material Returns for all Pre-Closing
Periods required to be filed by SCM have been or will be
filed when due in timely fashion;
(ii) all Taxes shown on such Returns have been or
will be paid when due in timely fashion;
(iii) the charges, accruals and reserves for Taxes
due, or accrued but not yet due, relating to the income,
properties or operations of SCM for any Pre-Closing
Period as reflected on its books (including, without
limitation, its unaudited balance sheet as of October
31, 1997, are adequate to cover such Taxes;
(iv) to the best knowledge of SCC, there is no
action, suit, proceeding, investigation, audit or claim
now pending regarding any Taxes relating the income,
properties or operations of SCM for any Pre-Closing
Period;
(v) there are no agreements for the extension of
the time for assessment of any Taxes relating to the
income, properties or operations of SCM for any Pre
Closing Period; and
(vi) all Taxes relating to the income, properties
or operations of SCM which it is required by law to
withhold or collect have been duly withheld or
collected, and have been timely paid over to the proper
authorities to the extent due and payable.
Section 3.13 Certain Events.
Except as disclosed in Schedule 3.13, since October 31,
1997 and through the date hereof, SCM has not:
(a) changed its stated capital, redeemed any of
its Common Stock, modified any of the rights relating to the
Shares or changed its certificate of incorporation or by-
laws;
(b) acquired or disposed of any shares or
interests in other companies, partnerships or other entities;
(c) made any capital commitment concerning fixed
assets; or
(d) made or been the subject of other material
changes or events of which SCC is aware and which are not in
the ordinary course of business of SCM.
Section 3.14 Environmental Matters.
(a) As of the date of this Agreement, SCM has
obtained or applied for all permits, licenses and other such
authorizations required to be obtained for the operation of
the business of SCM under currently applicable federal, state
and local laws relating to pollution or protection of the
environment (the "Environmental Laws");
(b) To the best knowledge of SCC, SCM is, as of
the date of this Agreement, (A) in material compliance with
all material terms and conditions of the permits, licenses
and authorizations required by Environmental Laws, and (B) in
compliance with all other material limitations, restrictions,
conditions, standards, prohibitions, requirements and
obligations, contained in the Environmental Laws presently in
effect;
(c) As of the date of this Agreement, except as
disclosed in Schedule 3.14(c), there are no civil, criminal
or administrative actions, suits, hearings, proceedings,
written notices of violation, claims or demands pending or,
to the best knowledge of SCC, threatened against SCM under
the Environmental Laws; and
(d) As of the date of this Agreement, except as
disclosed in Schedule 3.14(d), to the best knowledge of SCC,
SCM has not had any reportable discharge or release of
hazardous substances as that term is defined under any
applicable Environmental Laws which has not been handled in
accordance with applicable law.
Section 3.15 Machinery and Equipment.
The equipment which is currently being used in
the manufacturing processes if taken together with the assets
of SCC being transferred pursuant to the Asset Purchase
Agreement (as defined below) are adequate to conduct the
business of SCM as currently being conducted, and are in good
operating condition, maintenance and repair, taking into
account the age thereof.
Section 3.16 Employees; Labor Relations.
As of November 1, 1997, SCM employed a total
of approximately 700 employees (the "Employees"). As of the
date hereof, except as set forth on Schedule 3.16 attached
hereto, (a) SCM is not delinquent in the payment (i) to or on
behalf of its past or present Employees of any wages,
salaries, commissions, bonuses, benefit plan contributions or
other compensation for all periods prior to the date hereof,
or (ii) of any material amount which is due and payable with
regard to any Employee to any state or state fund pursuant to
any workers' compensation statute, rule or regulation or any
amount which is due and payable to any workers' compensation
claimant or any other party arising under or with respect to
a claim that has been filed under state statutes and approved
in the ordinary course in accordance with SCM's policies
regarding workers' compensation and/or any applicable state
statute or administrative procedure; (b) to the best
knowledge of SCC, there is no unfair labor practice charge or
complaint against SCM; (c) there is no labor strike, dispute,
slowdown or stoppage actually in progress or, to the best
knowledge of SCC, threatened against SCM; (d) there are no
collective bargaining agreements currently in effect between
SCM and labor unions or organizations representing any
Employees; and (e) no material grievance or arbitration
proceedings are pending relating to SCM.
Section 3.17 Directors and Officers.
Set forth on Schedule 3.17 hereto is a list of the names
and titles of each director and officer of SCM.
Section 3.18 Suppliers.
Schedule 3.18 hereto contains a list as of the date
hereof of SCM's suppliers .
Section 3.19 Certain Transactions.
Except as set forth in Schedule 3.19, there are no
transactions between SCM or SCC (including SCC's affiliates),
and SCM's or SCC's (including SCC's affiliates) directors,
officers or salaried employees, or the family members or
affiliates of any of the above (other than for services as
employees, officers and directors), including, without
limitation, any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or
otherwise requiring payments to or from, SCC or SCM to any
such officer, director or salaried employee, family member,
or affiliate or any corporation, partnership, trust or other
entity in which such family member, affiliate, officer,
director or employee has a substantial interest or is a
shareholder, officer, director, trustee or partner.
Section 3.20 Disclaimer of Other Representations and
Warranties; Best Knowledge; Disclosure.
(a)
Sellers do not make, and have not made, any
representations or warranties relating to Sellers or
otherwise in connection with the transactions contemplated
hereby other than those expressly set out herein which are
made by Sellers. Without limiting the generality of the
foregoing, Sellers have not made, and shall not be deemed to
have made, any representations or warranties in any
presentation of the business of Sellers in connection with
the transactions contemplated hereby, and no statement
contained in any such presentation shall be deemed a
representation or warranty hereunder or otherwise. It is
understood that any cost estimates, projections, forecasts or
other predictions, any data, any financial information or any
memoranda or offering materials or presentations are not and
shall not be deemed to be or to include representations or
warranties of Sellers. No person has been authorized by
Sellers to make any representation or warranty relating to
Sellers or otherwise in connection with the transactions
contemplated hereby and, if made, such representation or
warranty must not be relied upon as having been authorized by
Sellers.
(b) Whenever a representation or warranty made by
SCC herein refers to the best knowledge of SCC, such
knowledge shall be deemed to consist only of the actual
knowledge of any of those persons listed on Schedule 3.20.
SCC has not undertaken, nor shall SCC have any duty to
undertake, any investigation concerning any matter as to
which a representation or warranty is made as to the best
knowledge of SCC.
(c) Notwithstanding anything to the contrary
contained in this Agreement or in any Schedule, any
information disclosed in one Schedule shall be deemed to be
disclosed in all Schedules. Certain information set forth in
the Schedules is included solely for informational purposes
and may not be required to be disclosed pursuant to this
Agreement. The disclosure of any information shall not be
deemed to constitute an acknowledgment that such information
is required to be disclosed in connection with the
representations and warranties
made by Sellers and in this Agreement or is material, nor
shall such information be deemed to establish a standard of
materiality.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYERS
Subject to the Schedules attached hereto and referred to
below, each Buyer as to itself only and not as to the other
Buyer represents and warrants to Sellers that:
Section 4.01 Organization.
Each Buyer is a corporation duly organized and validly
existing and in good standing under the laws of the State of
Delaware.
Section 4.02 Corporate Authority.
Each Buyer has full corporate power and authority to
enter into the Documents and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and
performance by Buyers of the Documents have been duly
authorized by all requisite corporate action. The Documents
have been duly executed and delivered by each Buyer, and
(assuming due execution and delivery by Sellers) the
Documents constitute the valid and binding obligations of
each Buyer, enforceable in accordance with their terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting
creditors' rights generally or by general equitable
principles.
Section 4.03 No Violation; Consents and Approvals.
Except as disclosed in Schedule 4.03, neither Buyer is
subject to or bound by any provision of:
(a) any law, statute, rule, regulation or judicial
or administrative decision,
(b) any articles or certificate of incorporation
or bylaws or other organization documents,
(c) any mortgage, deed of trust, lease, note,
shareholders' agreement, bond, indenture, other instrument or
agreement, license, permit, trust, custodianship, other
restriction, or
(d) any judgment, order, writ, injunction or
decree of any court, governmental body, administrative agency
or arbitrator,
that would prevent or be violated by or that would result in
the creation of any material Encumbrance as a result of, or,
with respect to material agreements, under which there would
be a default or right of termination as a result of, the
execution, delivery and performance by such Buyer of the
Documents and the consummation of transactions contemplated
thereby. Except as disclosed in Schedule 4.03, no consent,
approval or authorization of or declaration or filing with any
Person is required for the valid execution, delivery and
performance by such Buyer of the Documents and the
consummation of the transactions contemplated thereby.
Section 4.04 Investment Intent.
Each Buyer is acquiring the Shares for its own account for
investment and not with a view to any distribution thereof.
Section 4.05 Litigation.
Except as disclosed in Schedule 4.05, there is no
action, suit, proceeding or investigation as of the date
hereof pending, or to the best knowledge of Buyers,
threatened against Buyers at law, in equity or otherwise,
in, before, or by any court of competent jurisdiction.
ARTICLE V
CERTAIN COVENANTS AND AGREEMENTS
OF SELLERS AND BUYERS
Section 5.01 Tax Covenants.
(a) SCC shall timely prepare and file, or cause to
be prepared and filed, all Returns of SCM for all taxable
periods ending on or prior to the Closing Date and timely pay,
or cause to be paid, when due all Taxes relating to such
Returns. Such Returns shall be prepared or completed in a
manner consistent with prior practice of SCM with respect to
Returns concerning the income, properties or operations of SCM
(including elections and accounting methods and conventions),
except as otherwise required by law or regulation or otherwise
agreed to by Buyers prior to the filing thereof.
(b) Any Taxes with respect to SCM that relate to a
tax period beginning before the Closing Date and ending after
the Closing Date (an "Overlap Period") shall be apportioned
between SCC and Buyers, (i) in the case of real and personal
property Taxes (and any other Taxes not measured or
measurable, in whole or in part, by net or gross income or
receipts), on a per diem basis and, (ii) in the case of other
Taxes, as determined from the books and records of SCM during
the portion of such period ending on the Closing Date and the
portion of such period beginning on the day following the
Closing Date consistent with the past practices of SCC.
Buyers shall cause SCM to file any Returns for any Overlap
Period, and Buyers shall pay, or cause to be paid, all state,
local or foreign Taxes shown as due on any such Returns. Tax
Returns prepared and filed by Buyers for an Overlap Period
shall be prepared in a manner consistent with past practices
employed by SCC, including election, accounting methodologies
and asset write-off periods, except as otherwise required by
law or regulation or otherwise agreed to by SCC in writing
prior to the filing thereof, and shall not inappropriately
shift items of income, gain, deduction, loss or credit into
either the Pre-Closing Tax Period or the Post-Closing Tax
Period. Buyers shall provide SCC with a copy of such Overlap
Period Tax Returns (and supporting schedules) in the form
proposed to be filed at least twenty (20) days in advance of
the due date (including extensions) for such Overlap Period
Tax Returns. SCC shall pay Buyers their share of any such
Overlap Period Taxes (to the extent SCC is liable therefor in
accordance with this Section 5.01(b) and to the extent not
already paid or reserved for by SCC) due pursuant to the
filing of any such Returns under the provisions of this
Section 5.01(b) within fifteen (15) business days after
receipt
of notice of such filing by Buyers, which notice shall set
forth in reasonable detail the calculations regarding SCC's
share of such Taxes.
(c) SCC shall have the right to represent the
interests of SCM in any Tax audit or administrative or court
proceeding relating to Returns described in Section 5.01(a)
with respect to which SCC may be liable for Taxes pursuant to
this Agreement (including any such proceedings relating to
SCM);
provided, however, that Buyers shall have the right to
participate at their own expense in any such audit or
proceeding to the extent that any such audit or proceeding may
affect the Tax liability of Buyers, any of its affiliates or
SCM for any period ending after the Closing Date and to employ
counsel of its choice at its own expense for purposes of such
participation. Notwithstanding anything to the contrary
contained or implied in this Agreement, without the prior
written approval of Buyers, which approval shall not be
unreasonably withheld, neither SCC nor any of its affiliates
shall agree or consent to compromise or settle, either
administratively or after the commencement of litigation, any
issue or claim arising in any such audit or proceeding, or
otherwise agree or consent to any Tax liability, to the extent
that any such compromise, settlement, consent or agreement may
affect the Tax liability of Buyers, any of their respective
affiliates or SCM for any period ending after the Closing
Date.
(d) Buyers shall promptly notify SCC in writing
upon
receipt by Buyers, any of their respective affiliates or SCM
of notice of any pending or threatened Tax audits or
assessments relating to the income, properties or operations
of SCM, in each case for Pre-Closing Periods only, so long as
Pre-Closing Periods remain open; provided, however, that
failure by Buyers to comply with this Section 5.01(d) shall
not affect Buyers' right to indemnification relating to Taxes
if such failure does not prejudice the rights of SCC. SCC
shall promptly notify Buyers in writing upon receipt by SCC or
any of its affiliates of notice of any pending or threatened
Tax audits or assessments relating to
the income, properties or operations of SCM, in each case for
PreClosing Periods only.
(e) Neither SCC nor any of its affiliates shall,
without the prior written consent of Buyers, file, or cause to
be filed, any amended Return or claim for Tax refund, with
respect to SCM for any Pre-Closing Period, to the extent that
any such filing may affect the Tax liability of Buyers, any of
their respective affiliates or SCM for any period ending after
the Closing Date (including, but not limited to, the
imposition of Tax deficiencies, the reduction of asset basis
or cost adjustments, the lengthening of any amortization or
depreciation periods, the denial of amortization or
depreciation deductions, or the reduction of loss or credit
carryforwards).
(f) If Buyers or any of their respective affiliates
(including SCM) receive a refund of any Taxes directly
relating to the Pre-Closing Tax Period of SCM or if SCC or any
of its affiliates receives a refund of any Taxes of SCM
directly relating to any taxable period beginning after the
Closing Date or the portion of any Overlap Period beginning on
the day after the Closing Date (collectively, the "Post-
Closing Tax Period") (including without limitation any refund
relating to a carryback of credits or limitation of any refund
relating to a carryback of credits or losses from a Post-
Closing Tax Period to a PreClosing Tax Period), the party
receiving such refund shall, within thirty (30) days after
receipt of such refund, remit such refund (net of any Tax cost
relating thereto) to SCC, in the case of Taxes relating to the
Pre-Closing Tax Period, or Buyers, in the case of Taxes
relating to the Post-Closing Tax Period. For the purposes of
this Section 5.01(f), the term "refund" shall include a
reduction in Tax and the use of an overpayment as a credit or
other Tax offset, and the receipt of a refund shall be deemed
to occur upon the filing of a return or an adjustment thereto
utilizing such reduction, overpayment or offset or upon the
receipt of cash.
(g) After the Closing Date, Buyers and SCC shall
provide each other, and Buyers shall cause SCM to provide
SCC, with such cooperation and information relating to SCM as
either party reasonably may request in (A) filing any Return,
amended Return or claim for refund, (B) determining any Tax
liability or a right to refund of Taxes, (C) conducting or
defending any audit or other proceeding in respect of Taxes
or (D) effectuating the terms of this Agreement. The parties
shall retain, and Buyers shall cause SCM to retain, all
Returns, schedules and work papers, and all material records
and other documents relating thereto, until the expiration of
the statute of limitations (and, to the extent notified by
any party, any extensions thereof) of the taxable years to
which such Returns and other documents relate and, unless
such Returns and other documents are offered and delivered to
SCC or Buyers, as applicable, until the final determination
of any Tax in respect of such years. Any information
obtained under this Section 5.01 shall be kept confidential,
except as may be otherwise necessary in connection with
filing any Return, amended Return, or claim for refund,
determining any Tax liability or right to refund of Taxes, or
in conducting or defending any audit or other proceeding in
respect of Taxes. Notwithstanding the foregoing, neither SCC
nor Buyers, nor any of their respective affiliates, shall be
required unreasonably to prepare any document, or determine
any information not then in its possession, in response to a
request under this Section 5.01(g).
Section 5.02 Expenses and Finders' Fees.
Each Buyer and each Seller will bear its own expenses in
connection with this Agreement and its performance. Each
Seller, on the one hand, and each Buyer, on the other hand,
each represent and warrant to the other that, except as set
forth on Schedule 5.02, the negotiations relative to this
Agreement and
the transactions contemplated hereby have been carried on in
such a manner as not to give rise to any valid claims against
the other party for a brokerage commission, finder's fee or
other like payment.
Section 5.03 Access to Information and Confidentiality
Buyers and the Sellers hereby confirm the terms and
provisions of that certain Confidentiality Agreement executed
by SCC and MEG dated as of July 31, 1996 (the
"Confidentiality Agreement") and hereby incorporate the
Confidentiality Agreement herein, in its entirety, by this
reference and intend to be bound by the terms thereof.
Buyers and the Sellers further acknowledge and agree that all
information provided to the Buyers hereunder shall constitute
Confidential Information (as such term is defined in the
Confidentiality Agreement), and that the provisions of this
Section 5.03, including the terms and provisions of the
Confidentiality Agreement, shall survive the termination of
this Agreement for any reason before Closing.
Section 5.04 Press Releases.
Except as required by law or stock exchange regulation,
any public announcements regarding the transactions
contemplated hereby shall be made only with the mutual
consent of Buyers and Sellers.
Section 5.05 Books and Records.
Buyers will, and will cause SCM to, retain all books,
records and other documents pertaining to the business of SCM
in existence on the Closing Date for a period of seven (7)
years from the Closing Date and to make the same available
after the Closing Date for such seven (7) year period for
inspection and copying by SCC at SCC's expense during the
normal business hours of SCM, upon reasonable request and
upon reasonable advance notice. No such books, records or
documents shall be destroyed by SCM without first advising
SCC in writing and giving SCC a reasonable opportunity to
obtain possession thereof. Without limiting the generality
of the foregoing, Buyers will, and will cause SCM to make
available to SCC and its representatives all information
deemed necessary or desirable by SCC in preparing its
financial statements and Returns and conducting any audits in
connection therewith.
Section 5.06 Use of Names.
Anything herein to the contrary notwithstanding, and
subject to rights granted to MEG in the Manufacturing
Agreement (as defined below), neither Buyer shall acquire any
interest in or right to use the name Xxxxx Xxxxxx or any
derivatives thereof, or the respective trademarks and logos
of SCC and SCC's group of companies is being transferred
hereunder (collectively, the "Names and Logos"). Buyers
agree that they will, as promptly as practicable but in any
event within sixty (60) days following the Closing Date,
eliminate the Names and Logos from the name of SCM and remove
or obliterate all such Names and Logos from all signs,
purchase orders, invoices, sales orders, labels, letterheads,
shipping documents and other materials used by them or any of
their affiliates (including but not limited to SCM).
Notwithstanding anything herein to the contrary, Buyers agree
that after the Closing Date they will neither use, nor permit
any of their affiliates (including but not limited to SCM) to
use, (i) any purchase orders, invoices, sales orders,
letterheads or shipping documents existing on the date
hereof, which bear any of the Names and Logos or any name or
logo confusingly similar thereto, without first obliterating
or covering such Name or Logo, or (ii) any such materials not
in existence on the Closing Date which bear such Name or
Logo. At SCC's request, Buyers will cooperate, and will cause
each of their affiliates (including but not limited to SCM)
to cooperate, in taking all steps reasonably necessary in any
jurisdiction to preserve for SCC and, where appropriate,
assign to SCC, all right, title and interest in and to such
Names and Logos, the registration and usage thereof and the
goodwill associated therewith. Buyers will not, and will
cause each of their affiliates (including but not limited to
SCM) not to, misappropriate, misrepresent or otherwise
infringe, abuse or diminish the value of such Names and
Logos.
Section 5.07 Officers and Directors.
Buyers shall cause SCM, as soon as practicable after the
Closing Date, to (i) remove the existing officers and
directors of SCM and appoint new officers and directors and
(ii) approve capital reduction.
ARTICLE VI
CONDITIONS PRECEDENT OF BUYERS
Buyers need not consummate the transactions contemplated
by this Agreement unless the following conditions shall be
fulfilled or waived by Buyers
Section 6.01 Opinion of Counsel.
Buyers shall have been furnished with opinions dated the
Closing Date of Winthrop, Stimson, Xxxxxx & Xxxxxxx and Xxxxx
& XxXxxxxx, counsel for Sellers, substantially in the form
attached hereto as Exhibit A.
Section 6.02 Closing Documentation.
Buyers shall have received the following documents,
agreements and instruments from Sellers:
(a) the stock certificate(s) representing the
Shares described in Section 1.03 hereof;
(b) a certificate dated as of a recent date from
the Secretary of State of the State of Delaware to the effect
that SCC is duly incorporated and in good standing in such
state;
(c) evidence, reasonably satisfactory to Buyers,
of
the authority and incumbency of the persons acting on behalf
of Sellers in connection with the execution of any document
delivered in connection with this Agreement;
(d) such other instruments and documents as Buyers
shall reasonably request not inconsistent with the provisions
hereof; and
(e) all original corporate documentation including
Certificates of Incorporation for SCM together with stock
transfer ledgers, minute books and all prior records of the
company in existence at the time of the closing included but
not limited to environmental records, tax records, customs
and export records.
Section 6.03 Approval of Legal Matters.
The form of all instruments, certificates and documents
to be executed and delivered by Sellers to Buyers pursuant to
this Agreement and all legal matters in respect of the
transactions as herein contemplated shall be reasonably
satisfactory to Buyers and their counsel, none of whose
approval shall be unreasonably withheld or delayed.
Section 6.04 Other Agreements.
The following documents shall have been entered into
simultaneously herewith: the Asset Purchase Agreement dated
the date hereof among MEG, Assemblies and SCC (the "Asset
Purchase Agreement"), the Contract Manufacturing Agreement
dated the date hereof between MEG and SCC (the "Manufacturing
Agreement") and the Sublease dated the date hereof between
Assemblies and SCC (the "Sublease").
Section 6.05 Consents.
Buyers shall have obtained consents from all parties set
forth on Schedule 4.03.
ARTICLE VII
CONDITIONS PRECEDENT OF SELLERS
Sellers need not consummate the transactions
contemplated by this Agreement unless the following
conditions shall be fulfilled or waived by Sellers:
Section 7.01 Opinion of Counsel.
Sellers shall have been furnished with an opinion dated
the Closing Date of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for
Buyers, substantially in the form attached hereto as Exhibit
B.
Section 7.02 Closing Documentation.
Sellers shall have received the following documents,
agreements and instruments from Buyers:
(a) payment of the Purchase Price pursuant to
Section 1.02 hereof;
(b) certificates dated as of a recent date from
the Secretary of State of the State of Delaware to the effect
that each Buyer is duly incorporated and in good standing in
such state;
(c) evidence, reasonably satisfactory to Sellers,
of the authority and incumbency of the persons acting on
behalf of Buyers in connection with the execution of any
document delivered in connection with this Agreement; and
(d) such other instruments and documents as
Sellers shall reasonably request not inconsistent with the
provisions hereof.
Section 7.03 Approval of Legal Matters.
The form of all certificates, instruments and documents
to be executed and delivered by Buyers to Sellers pursuant to
this Agreement and all legal matters in respect of the
transactions as herein contemplated shall be reasonably
satisfactory to Sellers and their counsel, none of whose
approval shall be unreasonably withheld or delayed.
Section 7.04 Other Agreements.
The following documents shall have been entered into
simultaneously herewith: the Asset Purchase Agreement, the
Manufacturing Agreement and the Sublease.
Section 7.05 Consents.
Sellers shall have obtained consents from all the parties
set forth on Schedule 3.06.
ARTICLE VIII
INDEMNIFICATION
Section 8.01 Indemnification by SCC.
SCC hereby agrees to defend, indemnify and hold harmless
Buyers, and their respective successors, assigns and
affiliates (collectively, the "Buyer Indemnitees") from and
against any and all losses, deficiencies, liabilities,
damages, assessments, judgments, costs and expenses,
including attorneys' fees (both those incurred in connection
with the defense or prosecution of the indefinable claim and
those incurred in connection with the enforcement of this
provision), (collectively, "Buyer Losses"), caused by,
resulting from or arising out of:
(a) (i) breaches of the representations and
warranties hereunder on the part of Sellers; (ii) failures by
Sellers to perform or otherwise fulfill any undertaking or
other agreement or obligation hereunder; (iii) any value
added taxes ("VAT") or similar taxes assessed by the United
Mexican States by reason of the sale of the Shares hereunder
or any claim with regard to Transfer Pricing for any Pre-
Closing Tax Period; (iv) any claims which may be brought by a
Management Employee (as defined in the Asset Purchase
Agreement) against SCM, or Buyers, or any of their
subsidiaries or related entities, which claims arise out of
such Management Employee's employment or separation from
employment from SCC prior to the Closing; (v) any "Continuing
Obligations" as that term is defined in a Release Agreement
dated March 13, 1997, addressed to Xxxxx Corona Corporation
and executed by The Chase Manhattan Bank (successor by merger
to Chemical Bank), Bank of America Illinois, and others, as
to which Release Agreement SCC hereby warrants full
compliance by all parties with all conditions precedent and,
further, warrants as fully effective as of the date of this
Agreement; and/or (vi) any claims, expenses or damages that
may be brought against SCM or Buyers subsequent to the
Closing, alleging an event of default under the terms of the
lease between SCM, as lessee, and Inmobiliaria Mex-Hong, S.A.
De C.V., as lessor, by reason of the sale or transfer of the
Shares to the Buyers including but not limited to claims for
termination of said lease (SCC's indemnity shall include
necessary costs of relocation and related expenses); and/or
(b) any and all actions, suits, proceedings,
claims, demands, incident to any of the foregoing or such
indemnification; provided, however, that if any claim,
liability, demand, assessment, action, suit or proceeding
shall be asserted in respect of which a Buyer Indemnitee
proposes to
demand indemnification ("Buyer Indemnified Claims"), such
Buyer Indemnitee shall notify SCC thereof, provided, further,
however, that failure to give such notification shall not
affect the indemnification provided hereunder except to the
extent the indemnifying party shall have been actually
prejudiced as a result of such failure. Subject to rights of
or duties to any insurer or other third Person having
liability therefor, SCC shall have the right promptly upon
receipt of such notice to assume the control of the defense,
compromise or settlement of any such Buyer Indemnified Claims
arising out of a lawsuit or claim brought by a third party
(provided that any compromise or settlement must be
reasonably approved by Buyers), including, at its own
expense, employment of counsel reasonably satisfactory to
Buyers; provided, however, that if SCC shall have exercised
its right to assume such control, Buyers may, in their sole
discretion and at their expense, employ counsel to represent
them (in addition to counsel employed by SCC) in any such
matter, and in such event counsel selected by SCC shall be
required to cooperate with such counsel of Buyers in such
defense, compromise or settlement.
Section 8.02 Indemnification by Buyers.
Each Buyer, severally and not jointly, hereby agrees to
defend, indemnify and hold harmless Sellers and their
respective successors, assigns and affiliates (collectively,
"Seller Indemnitees") from and against any and all losses,
deficiencies, liabilities, damages, assessments, judgments,
costs and expenses, including attorneys' fees (both those
incurred in connection with the defense or prosecution of the
indefinable claim and those incurred in connection with the
enforcement of this provision) (collectively, "Seller
Losses"), resulting from or arising out of:
(a) (i) breaches of representations and warranties
hereunder on the part of Buyers; (ii) failures by Buyers to
perform or otherwise fulfill any undertaking or agreement or
obligation hereunder; (iii) any action, suit, proceeding or
claim against any Seller Indemnitees with respect to
Employees incident to events arising on or after the Closing
Date including but not limited to (A) termination of
employment; (B) changes in compensation or terms and
conditions of employment; and (C) changes in or failure to
comply with the terms of any employee benefit or compensation
plans or programs (or any legal requirement applicable
thereto); (iv) any claims which may be brought by a
Management Employee against SCC, or any of its subsidiaries
or related entities, which claims arise out of such
Management Employee's employment or separation from
employment from SCM, or Buyers subsequent to the Closing;
and/or (v) any claims that may be brought against SCC for
performance under SCC's guarantee of the lease between SCM,
as lessee, and Inmobiliaria Mex-Hong, S.A. De C.V., as
lessor; and/or
(b) any and all actions, suits, proceedings,
claims and demands incident to any of the foregoing or such
indemnification; provided, however, that if any claim,
liability, demand, assessment, action, suit or proceeding
shall be asserted in respect of which such Seller Indemnitee
proposes to demand indemnification ("Seller Indemnified
Claims"), such Seller Indemnitee shall notify Buyers thereof,
provided, further, however, that failure to give such
notification shall not affect the indemnification provided
hereunder except to the extent the indemnifying party shall
have been actually prejudiced as a result of such failure.
Subject to rights of or duties to any insurer or other third
Person having liability therefor, Buyers shall have the right
promptly upon receipt of
such notice to assume the control of the defense, compromise
or settlement of any such Seller Indemnified Claims arising
out of a lawsuit or claim brought by a third party (provided
that any compromise or settlement must be reasonably approved
by Sellers) including, at their own expense, employment of
counsel reasonably satisfactory to Sellers; provided,
however, that if Buyers shall have exercised their right to
assume such control, Sellers may, in their sole discretion
and at their expense, employ counsel to represent them (in
addition to counsel employed by Buyers) in any such matter,
and in such event counsel selected by Buyers shall be
required to cooperate with such counsel of Sellers in such
defense, compromise or settlement.
Section 8.03 Remedies.
Except for the right to seek to specifically enforce the
covenants hereunder, and except as specifically provided in
this Agreement, the sole and exclusive remedy of both Buyers
and Sellers hereunder shall be restricted to the
indemnification rights set forth in this Article VIII.
Section 8.04 Period of Indemnity.
The indemnities contained in this Article VIII shall
expire one (1) year from the Closing Date, except with
respect to Sellers' indemnity for VAT, which will expire five
(5) years after the Closing Date, and except with respect to
Sellers' and Buyers' indemnity for Management Employees'
claims which will expire three (3) years after the Closing
Date and except with respect to the representations and
warranties made in Section 3.12 which indemnities shall
survive until the expiration of the applicable tax statutes
of limitation plus a period of sixty (60) days, and except
with respect to Buyer Losses or Seller Losses as to which
notice has been given pursuant to Sections 8.01 or 8.02
within such period, in which case the
indemnification period shall be extended until final
resolution of such losses.
Section 8.05 Certain Limitations.
(a) Notwithstanding any other provision hereof, in
no event shall SCC be liable for or obligated to indemnify
Buyers from and against any consequential, indirect or
special damages, including, without limitation, lost profits,
business interruption and loss of business opportunities or
goodwill. This exclusion of any such consequential, indirect
or special damages shall apply whether the action in recovery
of damages is sought based on contract, tort (including sole,
concurrent or other negligence or strict liability), statute
or otherwise. To the extent permitted by law, any statutory
remedies which are inconsistent with this Section 8.05(a) are
hereby waived by Buyers.
(b) SCC's obligation to indemnify for Buyer Losses
under Section 8.01 of this Agreement shall accrue only if the
aggregate of all such Buyer Losses exceeds Fifty Thousand
Dollars ($50,000) and then SCC shall be liable for such Buyer
Losses only to the extent that they exceed such amount with
the exception of Sellers' obligation to indemnify for Buyer
Losses in the nature of Management Employee claims set forth
in subsection 8.01(a)(iv) above, which obligation will be
without monetary limit or threshold.
(c) SCC's obligation to indemnify for Buyer Losses
shall be limited to an amount or amounts in the aggregate
equal to one hundred percent (100%) of the Purchase Price.
(d) If on the Closing Date either party (the
"first party") has actual knowledge of the untruth,
inaccuracy or breach of any representation or warranty by the
other party contained in this Agreement or the Documents,
then any liability, obligation, claim, loss, cost, damage and
expense, including attorneys fees and disbursements, arising
out of or resulting therefrom shall not be included as part
of Losses of the first party and the other party shall have
no obligation to indemnify the first party therefor.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 9.01 Representations and Warranties.
The representations and warranties of the parties
contained herein shall survive the Closing to the extent
provided in Section 8.04.
ARTICLE X
MISCELLANEOUS
Section 10.01 Cooperation.
Each of the parties hereto shall use its reasonable
efforts to take or cause to be taken all actions, to
cooperate with the other party hereto, with respect to all
actions, and to do or cause to be done all things necessary,
proper or advisable to consummate and make effective the
transactions contemplated by this Agreement.
Section 10.02 Waiver.
Any failure of Sellers to comply with any of their
obligations or agreements herein contained may be waived only
in writing by Buyers. Any failure of Buyers to comply with
any of their obligations or agreements herein contained may
be waived only in writing by Sellers.
Section 10.03 Notices.
All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given upon
receipt of: hand delivery; certified or registered mail,
return receipt requested; or telecopy transmission with
confirmation of receipt:
(i) If to Buyers, to:
The Matco Electronics Group, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxxx Xxxxx
U.S. Assemblies San Diego, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxx,Xxx Xxxx 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxxx Xxxxx
(with a copy to):
Xxxxx, Xxxxxx & Xxxxxx, LLP
0 Xxxxxxx Xxxxxxx
Xxxxxx, Xxx Xxxx 00000-0000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
(ii) If to Sellers, to:
Xxxxx Corona Corporation
000 Xxxxx 00 Xxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attention: W. Xxxxxxx Xxxxxxxx
(with a copy to):
Winthrop, Stimson, Xxxxxx & Xxxxxxx
Financial Centre
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Attention: G. Xxxxxxx Xxxxxx,Esq.
Such names and addresses may be changed by written notice to
each person listed above.
Section 10.04 Governing Law and Consent to Jurisdiction.
(a) This Agreement shall be governed by and
construed in accordance with the internal substantive laws
and not the choice of law rules of the State of New York.
(b) Any judicial proceeding brought with respect
to this Agreement must be brought in any court of competent
jurisdiction in the State of New York, and, by execution and
delivery of this Agreement, each party (i) accepts, generally
and unconditionally, the exclusive jurisdiction of such
courts and any related appellate court, and irrevocably
agrees to be bound by any judgment rendered thereby in
connection with this Agreement and (ii) irrevocably waives
any objection it may now or hereafter have as to the venue of
any such suit, action or proceeding brought in such a court
or that such court is an inconvenient forum. THE PARTIES
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO
WHICH THEY ARE BOTH PARTIES INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AGREEMENT.
Section 10.05 Counterparts.
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same
instrument.
Section 10.06 Headings.
The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 10.07 Entire Agreement.
This Agreement, including the Exhibits and Schedules
hereto and the documents referred to herein, embodies the
entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
Section 10.08 Amendment and Modification.
This Agreement may be amended or modified only by written
agreement of the parties hereto.
Section 10.09 Binding Effect; Benefits.
This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective
successors and assigns; nothing in this Agreement, express or
implied, is intended to confer on any Person other than the
parties hereto and their respective successors and assigns
(and, to the extent provided in Sections 8.01 and 8.02, the
other Buyer Indemnitees and Seller Indemnitees) any rights,
remedies, obligations or liabilities under or by reason of
this Agreement.
Section 10.10 Assignability.
This Agreement shall not be assignable by any party
hereto without the prior written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first above written.
THE MATCO ELECTRONICS GROUP, INC.
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Treasurer/CFO
U.S. ASSEMBLIES SAN DIEGO, INC.
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Vice President and Secretary
XXXXX XXXXXX CORPORATION
By: /s/ W. Xxxxxxx Xxxxxxxx
Name: W. Xxxxxxx Xxxxxxxx Title:
Chief Executive Officer
/s/ W/ Xxxxxxx Xxxxxxxx
W. Xxxxxxx Xxxxxxxx
Schedule 3.06
No Violations; Consents
Violations: none.
Consents: none.
Schedule 3.09
Litigation
SCM is a defendant or plaintiff in various legal actions
that have arisen in the ordinary course of business, the
ultimate resolution of which will not have a material
adverse effect on either SCM's financial position or
results of operation.
Schedule 3.12
Tax Matters
None.
Schedule 3.13
Certain Events
None.
Schedule 3.14(c)
Environmental Actions, Claims, Notifications, Etc.
None.
Schedule 3.14(d)
Releases of Hazardous Substances, Governmental Liens
Resulting from Releases or Clean-ups
None.
Schedule 3.16
Employees; Labor Relations
None.
Schedule 3.17
Directors and Officers
Board of Directors
W. Xxxxxxx Xxxxxxxx
Director; President of the Board of Directors
Xxxx X. Xxxxxxxxxxx Director
Xxxxxxx X. Xxxxxxxx Director
Officers
Xxxxxx Xxxxx
Director of Xxxxx Corona De Mexico, De C.V.
Xxxx Xxxxx
Vice President of Operations
Xxxxxxx X. Xxxxxxxx
Secretary
Xxxx X. Xxxxxxxxxxx
Treasurer
Schedule 3.18
Suppliers
Both Buyer and Seller are in possession of identical
printed copies of the computer report Suppliers of the
Business, Date 11/12/97 Time 5:26 P.M. which is hereby
incorporated by reference into this Schedule.
Schedule 3.19
Certain Transactions
None.
Schedule 3.20
Persons with Knowledge
W. Xxxxxxx Xxxxxxxx: President and Chief Executive Officer of SCC
Xxxx X. Xxxxxxxxxxx: Executive Vice President, Chief
Financial Officer and Assistant Secretary of SCC
Xxxxxxx X. Xxxxxxxx: Vice President of Operations of SCC
Xxxxxx X. Xxxxxx: Vice President/Controller of SCC
Schedule 4.03
No Violations; Consents
Violations - none.
Consents_Bank of Canada syndicate
GE Capital Corp.
Schedule 4.05
Litigation
None.
Schedule 5.02
Finder's Fees
None.
Exhibit A Opinion
of Seller's Counsel
Exhibit B
Opinion of Buyer's Counsel
